Nundeo Mahto And Ors @Hash State Of Jharkhand

Heard Mr. Sunil Kumar, learned counsel appearing for the appellants and Mr. Satish Kumar Keshri, learned A.P.P. appearing for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 06.03.2006 passed by 1st Additional Sessions Judge,

Deoghar in Session Trial No.07 of 2001, whereby and whereunder the appellants have been convicted for the offence under Section 323 of the IPC

and sentenced to undergo Regorious Imprisonment for six months with fine of Rs.500/- cash and in default in payment of fine further R.I. for one

month.

FIR has been lodged on the fardbeyan of Jiyanand Yadav i.e. the informant. As per the prosecution, on 09.03.2000 the informant had gone to

attend the marriage ceremony of his niece. On 10.03.2000 at about 8.30 A.M. when he was in his ‘khalihan’ then Damodar Mahto armed with

‘tangi’ came there and assaulted the informant by whom he sustained injuries on his nose. Sukdeo Mahto assaulted him with rod on his left hand

and snatched his wrist watch. Basudeo Mahto snatched cash of Rs.615/- from his pocket. Seeing this incident when his wife namely Sabita Devi

raised alarm then other accused also slapped her and snatched her golden chain. When Pashupati Mahto went there to save the informant, then he

was assaulted by Nundeo Mahto with ‘garaasa’. Some persons were present at the place of occurrence who have witnessed the incident.

On the basis of written application, the FIR has been lodged by the informant namely Jiyanand Yadav on 10.03.2000 and registered as Sarath P.S.

Case No.31 of 2000 against the eleven accused persons under Sections 147, 148, 149, 323, 324, 337, 307, 341 and 379 of the I.P.C.

On completion of investigation, all the eleven accused persons had been charge-sheeted under the aforesaid offence. Cognizance was taken and

charge had been framed under above sections. The case was committed to the Court of Sessions in which the appellants pleaded not guilty and

claimed to be tried.

To establish the prosecution story, the prosecution has examined altogether eight witnesses.

P.W.1-Pashupati Mahto (the injured witness), P.W.2-Chintamani Mahto, P.W.3-Nitya Nand Mahto, P.W.4-Onkareshwar Mahto, P.W.5-Panawati

Devi, P.W.6-Jiyanand Yadav (the informant and the injured witness), P.W.7-Sabita Devi and P.W.8-Dilip Prasad Singh.

From perusal of the witnesses especially P.Ws.1, 2, 3, 4, 5, 6 and 7, it appears that all have supported the allegation made in the FIR. But there are

contradiction in their depositions and on the basis of such contradiction other eight persons have been acquitted except the present appellants. The I.O.

and the Doctor have not been examined. Thus, in the absence of proof of injury, other section has been dropped and the appellants have been

convicted under Section 323 of the IPC only. It has been submitted by the learned counsel for the appellant that once the trial court has disbelieved the

version of the prosecution and in fact the injury has not been proved. In such circumstances, conviction under Section 323 of the I.P.C. is not

sustainable.

On the other hand learned APP has supported the judgment and argument has been advanced that P.Ws.1 & 6 are the injured eye witnesses and

they specifically made allegation against the present appellants. The said allegation has been supported by other eye witnesses and as such their

conviction under Section 323 of the IPC is wholly justifiable as there is enough evidence available on record.

From perusal of the evidence, it appears that there is material contradiction and injury has not been proved. Trial court has disbelieved the version

of the prosecution to the extent that eight persons have been acquitted as evidence against them has not been proved. Further, as per the prosecution

story, the grievous injury has been inflicted upon the informant (P.W.6). Instrument alleged is a ‘Tangi’ but no ‘Tangi’ injury has been

proved.

It is trite that once prosecution story is highly exaggerate and there is a tendency to implicate large number of persons with aggravated offences,

then finding the truth is very difficult rather not possible. In such scenario benefit has to be extended to the appellants.

In the present case, the learned trial court has not believed the whole story rather only to the limited extent that there was a scuffle between the

parties and as such they have been convicted under Section 323 of the IPC.

In view of discussion made above, this Court finds that the conviction of the appellants under Section 323 of the IPC is not sustainable and

accordingly the appellants are discharged from the offence under Section 323 of the IPC.

Consequently, the judgment of conviction and order of sentence dated 06.03.2006 passed by 1st Additional Sessions Judge, Deoghar in Session

Trial No.07 of 2001, is, hereby, set aside. Accordingly, the appeal is, hereby, allowed.

Since the appellants are already on bail, they are discharged from the liability of their bail bonds.